On 5 July 2022, a proposal for a ‘Work Where You Want’ Act was adopted by the Dutch House of Representatives. The proposal was subjected to a great deal of criticism, and considered unlikely to become law, but following changes, it has been given after all the green light.
If this proposal also makes it through the Senate, it will mean an amendment to the current Flexible Work Act. The name suggests employees could decide where they want to work, but is this really the case?
Currently, the Flexible Work Act states that an employee may ask an employer to adjust his or her place of work. The employer must consider the employee’s request and consult with the employee if it rejects the request. There is no requirement for ‘compelling business or service interests’’ for rejection, as in the case of a request for adjustment of working hours. The employer therefore has a great deal of freedom when considering a request and can, in principle, reject it on any grounds. The proposal changes this.
The original proposal stipulated that the employer had to grant the request for adjustment of the working place, if the intended working place was the employee’s home address or another work location of the employer, both within the EU. This request could only be refused if it was contrary to ‘serious business or service interests’.
The ‘serious business or service interests’ criterion. for refusal was strongly criticised by, among others, the Social and Economic Council (SER), because the wording only took into account the employer’s important interests, and did not weigh up the interests of the employer against those of the employee. According to the SER, a balance of interests would be a better test for a good balance between employee and employer. In response to this criticism, an amendment has been submitted to change the test.
Under the new version, an employer must grant a request for a change to place of work if, given the circumstances, the employer feels that ‘reasonableness and fairness’ means their interests must give way to the request.
According to the SER, weighing interests according to this ‘reasonableness and fairness’ criterion would give the employee more say in the balance between working at an employer location and working physically outside the organisation, and would leave room for the employer to make appropriate arrangements.
The amendment explains that the balancing of interests is primarily carried out by the employer. The employer must assess whether, in all reasonableness and fairness, its interests outweigh those of the employee. The employer must consider all the circumstances of the case and must therefore have a clear understanding of the employee’s concrete interests in changing his or her place of work. Elements that may be taken into consideration include social cohesion, cooperation within teams and heavy administrative or financial burdens for the employer.
If the employee makes a request to change his or her work location to another location, for example a second home outside the EU, the employer does not in principle have to grant the request. The employer would be required to ‘consider’ the request and consult with the employee in the event of rejection. So in this respect, ‘work where you want’ is not really work where you want.
The Work Where You Want Act requires employers to weigh up the interests involved in a request to change the workplace to the employee’s home address or to a work location of the employer within the EU. How this balancing of interests works out will depend on all the circumstances of the case. For requests to change the place of work to a location outside the EU, the old regime will still apply.
We believe that the earlier test was far-reaching, but that this amended test still raises many questions. We are waiting to hear from the Senate, which will continue deliberating on the proposal on 27 September 2022.
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